Rights guaranteed but unprotected

(Editor's Note: This is the first of a three-part series on the National Labor Relations Board.)

By DON McINTOSH

Staff Reporter

In their fourth-floor office at the KOIN Center in Portland, Cathleen Shelton and her staff of seven keep busy. Shelton is officer-in-charge at the National Labor Relations Board's (NLRB) Subregion 36 office, responsible for defending the rights of some 150,000 private-sector union workers in Oregon and southwest Washington, as well as the rights of tens of thousands who want to join unions. In her mission to enforce labor law, she faces enormous hurdles.

Her agency, the NLRB, is underfunded, understaffed, and overburdened by a cumbersome multi-stage process for handling charges that labor laws have been violated. As a result, too often it fails to do what it promises - protect workers' union rights.

The agency's failure is almost built-in, since it has no enforcement power of its own and no punitive sanctions in any case. It was limited at birth in 1935 by political considerations, and these limits have grown more severe as labor's political and legislative fortunes have withered over the last 64 years. The labor movement has made repeated attempts to reform labor law, and has met with repeated failure. As a result, unions have had to devise strategies to work around the law or to use it as one tactic in a broader campaign, since they no longer expect the law to be enforced.

Nevertheless, Shelton is held in high regard by many local union lawyers, who have seen Subregion 36 improve in efficiency and morale since her arrival. She comes from the agency's rank-and-file: After earning a master's degree in industrial relations from the University of Oregon, she got a job in the Seattle office of the NLRB and worked for 15 years as a field examiner, investigating complaints and conducting union elections. In March 1998 she returned to Oregon to head Subregion 36.

As Susan Stoner, staff lawyer for Portland-based Amalgamated Transit Union Local 757, tells it, Shelton inherited a big backlog and a dispirited staff. But, Stoner says Shelton has increased the output of the office despite a lack of funds. Since Shelton's arrival, the Portland office has gotten more aggressive in pursuing complaints, against both employers and unions.

What the law is supposed to protect

According to the National Labor Relations Act, workers have the right to join a union. If a union enjoys the support of a majority of workers, management is required to bargain in good faith. Management is forbidden to fire, harass, threaten, or otherwise discriminate against employees for their union sympathies.

To protect workers' union rights and oversee elections to see if workers want a union, the National Labor Relations Board was created. The NLRB has two parts: The general counsel, who heads a corps of investigator/prosecutors with 52 branch offices throughout the country; and the board itself, a five-member body which functions like a labor court, hearing cases brought by the general counsel and establishing legal precedents for interpretation of the National Labor Relations Act. From the beginning, the board and general counsel have been the product of political considerations - appointed by the president and funded by Congress.

An agency starved

What Congress loves not, it feeds not.

Over the last 23 years, the NLRB budget hasn't kept up with inflation. Five times it has even been cut in absolute terms from the previous year (as in 1995, 1997 and 1998.) Locally, the budget for the Seattle-headquartered Region 19 (which includes the Portland subregional office) went from $2.75 million in 1996 to $2.73 million in '97 to $2.59 million in '98. In 1998, the budget shortage was so severe that the agency was unable to replace staff who quit or retired.

NLRB staff levels suggest a slow strangulation. The agency peaked in 1979 at 2,951 full-time staff equivalent and has declined steadily ever since. In 1998 the NLRB had just 1,879 full-time staff, a third fewer than 20 years before.

The legal odyssey of unfair labor practice charges

While the NLRB is responsible for organizing union elections, 85 percent of its staff time is spent dealing with violations of labor law, known as "unfair labor practices." Understaffing makes even slower a process already encumbered by multiple stages of appeal and delay.

Let's walk through the process from the beginning.

Under the National Labor Relations Act, the NLRB doesn't initiate its own investigations into unfair labor practices. Instead, unions and workers must first file charges. In 1997, 25,809 unfair labor practice charges were filed against employers. About half of these were for firing or otherwise discriminating against workers for union involvement.

Whoever files a charge is required to give evidence. If it looks like a violation has occurred, the accused is called to respond. If there's not enough evidence, the NLRB will dismiss the charge or ask the union to withdraw it. Roughly two-thirds of the charges filed are dismissed or withdrawn. If it does seem that a violation occurred, the field office tries to get the employer to agree to a voluntary settlement.

There are two kinds of these settlements: formal and informal. In both, the employer promises to make amends. But in a formal settlement, the employer waives the right to further hearings and appeals, which makes it easier to get a court order if they don't keep their word. Formal settlements must be approved by the general counsel and the board.

"An informal settlement is the one we usually have to have," says ATU attorney Stoner. "Getting a formal settlement drags out the process six to eight months." If a violator is unwilling to agree to any kind of settlement, Shelton recommends to the Seattle office that a complaint be issued, and the case is set for trial by an NLRB administrative law judge. At the beginning of 1999, the Portland office had seven such cases scheduled for trial.

The majority of charges deemed to have merit are settled voluntarily before a complaint is issued; fewer than 15 percent of the total charges filed result in complaints.

Up to this point, the process has been comparatively speedy. Half the cases that result in a complaint took three months or less to get to that stage. Once a regional office issues a complaint, the case enters what may seem like a legal "land that time forgot."

In 1997, the median case took nearly 10 months from a complaint to a decision by an administrative law judge. The judge's decision can be appealed to the five-member board in Wash-ington, D.C. The median wait for a board decision is six months; as of mid-February, 829 cases were waiting to be heard by the board.

"We try to stay away from Washington, D.C.," Stoner says.

Altogether, then, half the cases that make it to a board decision took a year and a half to get there. (In 1987, the height of the NLRB's administrative delay, it took over two years to get to a board decision, and at one point in 1984 the backlog reached 1,647 cases.)

And board decisions can be appealed to a U.S. Court of Appeals.

[Remember, these figures are the MEDIAN - half the cases took less time, but half took more. Stoner recalls a case she worked on that took over five years to resolve.]

After the NLRB local investigation and an administrative law judge have concluded that an employer violated the law, appeals are seldom successful at reversing this decision. The board upholds the decision of the administrative law judge more than 80 percent of the time, and appeals courts uphold board orders nearly 80 percent of the time. These odds suggest that employers who appeal at every stage are abusing the multi-level appeals process as a tactic of delay because they are ideologically opposed to dealing with unions.

"Remedies," not penalties

"People complain that the act doesn't have teeth," Shelton said. "We haven't thrown many people into jail, I'll grant you that. But I've worked here long enough to know that we make a difference sometimes."

The agency does indeed make a difference, with companies that want to remain law-abiding. But when it comes down to it, anti-union consultants and union organizers agree - companies determined to get rid of a union or keep one out know they can violate the law and face few sanctions.

To begin with, the agency's sanctions are, in legal parlance, "remedies" (intended to "make whole" the wronged party), not "penalties" (designed to punish or deter the wrongdoer.) Remedies, which are contained in the voluntary settlements, can occur at any stage of the process; once an employer agrees to the remedies, the case is in effect closed.

The most common remedy is the posting, by the employer, of a notice which informs workers of their rights, promises not to commit the violations again, and lists other remedies agreed to. While it's true employers aren't thrilled about posting such notices, union officials are near unanimous in the opinion that posting is a toothless sanction.

"Employees in the store don't even read that garbage," says Gene Pronovost, president of the state's largest private sector union, Tigard-based United Food and Commercial Workers Local 555.

For workers fired for exercising their legal rights to support a union, the standard remedy is reinstatement and back pay. In 1997, 2,821 employees were offered reinstatement in NLRB settlements and $80 million in back pay was awarded.

Portland NLRB field agent Jeff Jacobs said in his experience, employees accept reinstatement offers less than half the time; the longer they've been gone, the less likely they are to return. Nationally, the NLRB reports that three-fourths of employees offered reinstatement return to work. But how many stay, and for how long, aren't in the agency's annual report.

Moreover, any wages that fired workers earned in the meantime are subtracted from back pay awards. Thus, in theory, a backpay award could be zero if an employee finds a better-paying job soon after being fired. Plus, employees who turn down or quit a new job in the interim lose their right to back pay.

Of course, interest payments are added to back pay awards, Willamette University labor law professor Ross Runkel points out. "But for the worker who's been out of work three years," he adds, "those settlements can't go back and pay for mortgage payments they've missed."

When there appears to be a pattern of violation, the NLRB sometimes calls for unusual remedies such as allowing union representatives to visit the worksite where employers have committed violations in an organizing campaign, or extending union certification for a year in cases where the employer has refused to bargain in good faith.

But the agency's toughest remedy is seldom used. Known as the 10(j) injunction (after Section 10(j) of the National Labor Relations Act), it's a court order, backed by the penalties for contempt of court. It's requested in cases where an immediate end to violations is necessary to avoid irreparable harm, but it takes months to obtain.

Before it's issued, an injunction must pass through four levels. An NLRB regional office recommends to the Injunction Litigation Branch of the Division of Advice of the Office of the General Counsel of the NLRB that an injunction be requested. If the general counsel approves, he asks the board. If the board approves, it makes a request to a U.S. Court of Appeals.

Over a four-year period from 1994 to 1998, NLRB regional offices made 708 requests for injunction. The general counsel asked the board for authorization in 313 of those cases. Of those, the board requested 292 injunctions - 133 were settled by the offending party before a court decision. Of the remaining 137, injunctions were granted in 105 cases.

If a violator refuses to obey a 10(j) injunction, or defies a board order after it's been upheld in appeals court, the board can ask that the violator be held in contempt of court, which can bring fines and jail time. In 1997 the board petitioned for contempt of court against 10 employers; 6 were found in contempt of court.

After every stage of appeal is exhausted, injunctions and contempt of court proceedings assure that employers will at last comply with the law. But mere compliance after such a legal odyssey may be little vindication for union lawyers like Stoner. The union can have spent a fortune in legal bills to get the law enforced, and the workers whose rights were trampled may have moved away, passed away, or found a way to make a living somewhere else.

(Editor's Note: Part Two will look at the repeated but unsuccessful attempts by unions to reform the labor law, as well as the strategies unions have devised to use the law to their advantage.)